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Net Neutrality

GoodBye Network Neutrality, Welcome Open Internet!

WASHINGTON, October 26, 2009 – Absent from the notice of proposed rulemaking released by the Federal Communications Commission Thursday is the charged term of “network neutrality” that has been discussed over the years. Instead, the paper is focused on the need to preserve an “open internet” through government intervention.

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WASHINGTON, October 26, 2009 – Absent from the notice of proposed rulemaking released by the Federal Communications Commission Thursday is the charged term of “network neutrality” that has been discussed over the years. Instead, the paper is focused on the need to preserve an “open internet” through government intervention.

The problem is that neither the principle of network neutrality – which deals with how broadband providers may charge differential rates for preferred business customers – or the need to preserve an “open internet” are precise words. Defining either for the purpose of government rules is not an easy task.

The focus on “open internet” versus “network neutrality” in the FCC’s proposed rules and the statement released by FCC Chairman Julius Genachowski makes sense given that it is easier to find supporters of the former than the latter. Still, President Obama used the term “network neutrality” during his campaign.

Regardless of the language used, the discussion of whether the government should become more involved to support network neutrality principles has gone on for years.

“Three years ago we were having a very different discussion; we didn’t have the kinds of applications on the Internet that we have today,” said Rob Atkinson, president of the Information Technology and Innovation Foundation. “Three years from now, we are going to have issues come up that we couldn’t predict today.”

Andy Schwartzman, president of the Media Access Project, said “I would say that the biggest change in the net neutrality debate has been the emergence of high speed wireless networks. This has made the issue more complex, and also more real, to people.”

A second factor is the effort of the large carriers to “make content providers subject to regulation,” he said. Schwartzman noted that the role of edge players such as Google, Skype and Amazon has become more and more important.

“Network neutrality – the concept that the Internet should remain free and open to all comers – has been a major public policy priority for Google over the last two years. But anyone who has followed the debate closely knows that one of the challenges raised by our opponents has been defining what exactly the term means. The fact is, net neutrality can mean different things to different people,” wrote Google’s Washington Telecom and Media Counsel Richard Whitt in a 2007 blog post.

At the time, Whitt clarified what Google meant by the term. He was also reacting to some statements by top Google executives suggesting a softening of the company’s hard-line views on the subject. Whitt noted “that lack of broadband competition gives providers the market incentive and ability to discriminate against Web-based applications and content providers.”

If the definition of either network neutrality or what it means to ensure an open internet were clear and confined, the FCC would not need 107 pages to address the issues at hand and to explain why establishing rules governing internet access makes sense even as technology continues to evolve.

Atkinson defined the issues at the heart of the debate as being “first whether ISPs have blocked or degraded Web sites and under what circumstances, if any should this be allowed.”

The problem of blocking legitimate web sites or applications has never been realized, Atkinson said, with the exception of the case of Madison River, a small internet service provider blocking Vonage’s voice-over-internet-protocol applications. “The second issue is whether commercial arrangements should be allowed that would enable content and application providers who paid higher premiums to get better delivery of their Web products,” he said. “The third issue is how ISP networks should be managed to enhance performance.”

Atkinson urged the FCC to establish a generalized principle for a fair and open internet and enforce that principle on a case-by-case basis.

Genachowski summed up the challenge last Thursday, when he said, “[D]o any of us think that the draft rules proposed today perfect? Are they set in stone? No—we are at the beginning of a rulemaking process, with draft rules offered in the context of a Notice that seeks to spot the issues, ask the hard questions, and seek broad public input.”

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Broadband Census News LLC offers daily and weekly reporting, as well as the Broadband Breakfast Club. The Broadband Breakfast Club has been inviting top experts and policy-makers to share breakfast and perspectives on broadband technology and internet policy since October 2008. Both Broadband Census News LLC and Broadband Census Data LLC are subsidiaries of Broadband Census LLC, and are organized in the Commonwealth of Virginia. About BroadbandCensus.com.

Winter covered technology policy issues for five-and-a-half years as a reporter for the National Journal Group. She has worked for USA Today, the Washington Times, the Magazine Group, the State Department’s International Visitor’s Program, and the Council on Hemispheric Affairs. She also taught English at a university in Tegucigalpa, Honduras.

Asia

Dae-Keun Cho: Demystifying Interconnection and Cost Recovery in South Korea

South Korean courts have rejected attempts to mix net neutrality arguments into payment disputes.

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The author of this Expert Opinion is Advisor in Dae-Keun Cho, a member of the telecom, media and technology practice team at Lee & Ko.

South Korea is recognized as a leading broadband nation for network access, use and skills by the International Telecommunications Union and the Organisation for Economic Co-operation and Development.

South Korea exports content and produces platforms which compete with leading tech platforms from the US and China. Yet few know and understand the important elements of South Korean broadband policy, particularly its unique interconnection and cost recovery regime.

For example, most Western observers mischaracterize the relationship between broadband providers and content providers as a termination regime. There is no such concept in the South Korean broadband market. Content providers which want to connect to a broadband network pay an “access fee” like any other user.

International policy observers are paying attention to the IP interconnection system of IP powerhouse Korea and the lawsuit between SK Broadband (SKB) and Netflix. There are two important subjects. The first is the history and major regulations relating to internet protocol interconnection in South Korea. Regulating IP interconnection between internet service providers is considered a rare case overseas, and I explain why the Korean government adopted such a policy and how the policy has been developed and what it has accomplished.

The second subject is the issues over network usage fees between ISPs and content providers and the pros and cons. The author discusses issues that came to the surface during the legal proceedings between SKB and Netflix in the form of questions and answers. The following issues were identified during the process.

First, what Korean ISPs demand from global big tech companies is an access fee, not a termination fee. The termination fee does not exist in the broadband market, only in the market between ISPs.

In South Korea, content providers only pay for access, not termination

For example, Netflix’s Open Connect Appliance is a content delivery network. To deliver its content to end users in Korea, Netflix must purchase connectivity from a Korean ISP. The dispute arises because Netflix refuses to pay this connectivity fee. Charging CPs in the sending party network pay method, as discussed in Europe, suggests that the CPs already paid access fees to the originating ISPs and should thus pay the termination fee for their traffic delivery to the terminating ISPs. However in Korea, it is only access fees that CPs (also CDNs) pay ISPs.

In South Korea, IP interconnection between content providers and internet service providers is subject to negotiation

Second, although the IP interconnection between Korean ISPs is included in regulations, transactions between CPs and ISPs are still subject to negotiation. In Korea, a CP (including CDN) is a purchaser which pays a fee to a telecommunications service provider called an ISP and purchases a public internet network connection service, because the CP’s legal status is a “user” under the Telecommunications Business Act. Currently, a CP negotiates with an ISP and signs a contract setting out connection conditions and rates.

Access fees do not violate net neutrality

South Korean courts have rejected attempts to mix net neutrality arguments into payment disputes. The principle of net neutrality applies between the ISP and the consumer, e.g. the practice of blocking, throttling and paid prioritization (fast lane).

In South Korea, ISPs do not prioritize a specific CP’s traffic over other CP’s because they receive fees from the specific CP. To comply with the net neutrality principle, all ISPs in South Korea act on a first-in, first-out basis. That is, the ISP does not perform traffic management for specific CP traffic for various reasons (such as competition, money etc.). The Korean court did not accept the Netflix’s argument about net neutrality because SKB did not engage in traffic management.

There is no violation of net neutrality in the transaction between Netflix and SKB. There is no action by SKB to block or throttle the CP’s traffic (in this case, Netflix). In addition, SKB does not undertake any traffic management action to deliver the traffic of Netflix to the end user faster than other CPs in exchange for an additional fee from Netflix.

Therefore, the access fee that Korean ISPs request from CPs does not create a net neutrality problem.

Why the Korean model is not double billing

Korean law allows for access to broadband networks for all parties provided an access fee is paid. Foreign content providers incorrectly describe this as a double payment. That would mean that an end user is paying for the access of another party. There is no such notion. Each party pays for the requisite connectivity of the individual connection, nothing more. Each user pays for its own purpose, whether it is a human subscriber, a CP, or a CDN. No one user pays for the connectivity of another.

Dae-Keun Cho, PhD is is a member of the Telecom, Media and Technology practice team at Lee & Ko. He is a regulatory policy expert with more than 20 years of experience in telecommunications and ICT regulatory policies who also advises clients on online platform regulation policies, telecommunications competition policies, ICT user protection policies, and personal information protection. He earned a Ph.D. in Public Administration from the Graduate School of Public Administration in Seoul National University. This piece is reprinted with permission.

Request the FREE 58 page English language summary of Dr. Dae-Keun Cho’s book Nothing Is Free: An In-depth report to understand network usage disputes with Google and Netflix. Additionally see Strand Consult’s library of reports and research notes on the South Korea.

Broadband Breakfast accepts commentary from informed observers of the broadband scene. Please send pieces to commentary@breakfast.media. The views reflected in Expert Opinion pieces do not necessarily reflect the views of Broadband Breakfast and Breakfast Media LLC.

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12 Days of Broadband

Gigi Sohn’s Political Purgatory and the Prospect of Reintroducing Net Neutrality Rules in 2023

If Sohn is sworn in, it would break the FCC’s party deadlock and allow the Democrats to potentially bring back net neutrality.

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From the 12 Days of Broadband:

November’s midterm elections saw the Democrats hold on to power in the Senate, where executive and judicial appointments are confirmed. But Democrats also held to power in the previous term, yet the upper chamber did not hold votes on the prospective fifth commissioner of the Federal Communications Commission, Democrat Gigi Sohn.

Sohn, who was nominated by President Joe Biden in October 2021, has been in a bit of a political purgatory since making it through the Senate commerce committee in March. Former FCC commissioners were concerned about her prospects of making it to Senate votes before the midterms, with the lingering possibility that the Republicans would win the chamber and nuke her nomination over concerns that she would not be able to remain non-partisan on the issues the FCC addresses.

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FCC

GOP Congresswoman Says FCC Puts Politics Over the Law

‘Our founders provided Congress with legislative authority to ensure lawmaking is done by elected officials, not unaccountable bureaucrats.’

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Photo of Rep. Cathy McMorris Rodgers, R–Wash., obtained from Flickr.

WASHINGTON, October 28, 2022 – Rep. Cathy McMorris Rodgers, R–Wash., accused the Federal Communications Commission of politicized actions in excess of its statutory authority, in a letter sent in September and apparently released by the agency last week.

To prevent possible FCC overreach, McMorris Rodgers, the ranking member of the House Energy and Commerce Committee, asked FCC Chairwoman Jessica Rosenworcel to provide a list of pending and expected rulemakings, and the congressional authorizations therefor. Rosenworcel responded earlier this month in a letter released with the congresswoman’s original correspondence.

The Washington Republican wrote that the Biden administration has been overly reliant on executive orders and cited recent Supreme Court precedent as evidence. McMorris Rodgers highlighted the Environmental Protection Agency’s loss in West Virginia v. EPA, in which the Court invoked the “major questions doctrine,” a legal doctrine limiting of the executive branch’s ability to permissively interpret Congress’s statutory language. She also referenced the Court’s rejection of the Center for Disease Control’s eviction moratorium and the Occupational Health and Safety Administration’s vaccine or testing mandate.

“Our founders provided Congress with legislative authority to ensure lawmaking is done by elected officials, not unaccountable bureaucrats,” McMorris Rodgers wrote.

“I assure you the Committee and its members will exercise our robust investigative and legislative powers to not only forcefully reassert our Article I responsibilities, but to ensure the FCC under Democrat leadership does not continue to exceed Congressional authorizations,” she added.

Is net neutrality coming back?

In April 2021, McMorris Rodgers co-signed a letter with numerous congresspeople urging Rosenworcel to reject net neutrality, a policy supported by the chairwoman.

Today’s FCC is evenly split between Republicans and Democrats, one commissioner short of the standard five. President Joe Biden nominated Gigi Sohn for the fifth spot, but her nomination is stalled due to Republican opposition in the Senate. Since Sohn supports net neutrality, some experts believe the FCC may once again pursue the policy should Sohn be confirmed.

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